IN THE SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA

CRIMINAL DIVISION

UNITED STATES,

v. Criminal No. 08-CF1-26996

Criminal No. 08-CF1-27068
DYLAN M. WARD, Criminal No. 08-CF1-26997
JOSEPH R. PRICE,
Judge Frederick H. Weisberg
and
Status Hearing – April 24, 2009
VICTOR J. ZABORSKY,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

OF THE DEFENDANTS’ JOINT MOTION TO COMPEL DISCOVERY

Dylan Ward, Joseph Price and Victor Zaborsky, (collectively the “Defendants”) by and

through undersigned counsel, respectfully submit the following memorandum of points and

authorities in support of their Joint Motion to Compel the Government to Produce Discovery. 1

BACKGROUND

The police investigation into Robert Wone’s death commenced on August 2, 2006, when

the Defendants found Mr. Wone fatally stabbed inside of their home at 1509 Swann Street, N.W.

and they called 911. More than two years later, the Defendants were indicted in connection with

Mr. Wone’s death. They were not, however, charged with killing Mr. Wone. Instead, they were

charged with conspiring to obstruct and obstructing justice, and tampering with evidence.

1
Pursuant to Rule 16-II of the Superior Court Rules of Criminal Procedure, undersigned counsel
certifies that they have made a bona fide attempt to secure the relief requested in this motion
from the Government on a voluntary basis and that the Government has not complied with that
request.
 During its two and a half year investigation, the government has generated an enormous

amount of discoverable evidence. In its search for the killer, for example, the government:

• relied on the investigative work of dozens of law enforcement officers with the
Metropolitan Police Department (“MPD”) and the Federal Bureau of
Investigation (“FBI”);

• seized hundreds of items from the Defendants’ home, cutup hardwood floors,
removed stairs, and took sink drain traps and other parts of the house;

• took hundreds of finger and palm prints from the inside and outside of 1509
Swann Street, N.W.;

• applied chemicals to the Defendants’ home “in a manner not intended by the
manufacturer” in an attempt to locate forensic evidence, causing hundreds of
thousands of dollars in damage;

• interviewed dozens of individuals, including the Defendants themselves, for

many hours;

• obtained many pages of medical and other personal records relating to the
decedent from the District of Columbia Department of Fire and Emergency
Medical Services (“EMS”), George Washington University Hospital, and
elsewhere;

• purportedly obtained opinions from a number of experts on a wide variety of

subjects ranging from forensic pathology and blood spatter to ejaculation;

• obtained computer hard drives, phone records, electronic data and thousands of e-
mails and electronic documents relating to the Defendants and Mr. Wone, which
constitute thousands of pages; and

• created hundreds of photographs.

Immediately after they were indicted, the Defendants – individually and collectively –

requested that the government produce the evidence that supports its theory that the Defendants

somehow sought to impede the investigation into Mr. Wone’s as yet unsolved murder. Since

November, 2008, the Defendants served on the government a total of twenty letters requesting

2
specific discovery, conducted discovery conferences with government counsel, and viewed

certain available evidence. See Exhibits B, C and D. 2

Notwithstanding these many requests, as of the date of this Motion, the government has

produced only a portion of the requested discovery. Most troubling is that government counsel

has: (1) not produced evidence obviously in its possession and discoverable pursuant to Super.

Ct. Crim. Rule 16; (2) failed to identify the critical experts upon which its case is based; and (3)

failed to respond – at all – to a number of straightforward discovery requests.

As discussed in more detail below, and as highlighted in the Discovery Chart attached

hereto as Exhibit A, there is significant evidence in the possession of the government that should

be produced to the Defendants immediately to ensure they have an adequate opportunity to

prepare their defense.

ARGUMENT

I. THE GOVERNMENT FAILED TO PRODUCE INFORMATION PROPERLY DISCOVERABLE

UNDER RULE 16.

Exhibit A summarizes the twenty letters requesting specific discovery made by the

Defendants to the government during the past four months which remain outstanding as of the

date of this Motion. Each category of request is considered in turn.

A. The Defendants’ Statements

After Mr. Wone’s body was discovered, the Defendants called 911. A team of

emergency medical responders and law enforcement personnel arrived at the scene and spoke to

the Defendants. The Defendants were then separated and interviewed by members of the

Metropolitan Police Department for many hours before being released.

2
Exhibits B, C and D, respectively, comprise all discovery letters served by each Defendant on
AUSA Kirschner from November 21, 2008, through March 19, 2009.

3
 Now charged with conspiring to obstruct and obstructing justice – in part by lying to the

police 3 – the Defendants are absolutely entitled to know the full scope of all statements made to

members of law enforcement and government personnel. The Defendants’ discovery requests 1

through 10 4 seek the Defendants’ statements pursuant to Rule 16(a)(1)(A). The government

should be compelled to produce all such statements and to produce unredacted versions of notes

regarding the Defendants’ statements that have been produced in redacted form. See Def. Req. 1

and 5.

This court is well aware that Super. Ct. Crim. R. 16(a)(1)(A) requires production of:

any relevant written or recorded statements made by the defendant, or copies

thereof, within the possession, 5 custody or control of the government, the
existence of which is known, or by the exercise of due diligence may become
known, to the attorney for the government; that portion of any written record
containing the substance of any relevant oral statement made by the defendant
whether before or after arrest in response to interrogation by any person then
known to the defendant to be a government agent; and recorded testimony of the
defendant before a grand jury which relates to the offense charged.

Such statements, made in response to interrogation by government agents, must be produced to

the Defendants, whether or not the government intends to use the statements at trial.

Super. Ct. Crim. Rule 16(a)(1)(A), also requires that:

3
In relevant part, the Indictment identifies as overt acts of the conspiracy that the Defendants
“made statements to law enforcement authorities that were false in material respects and
intended to misdirect and mislead law enforcement authorities into believing that an unknown
intruder had, in fact, killed Robert Wone.” Superseding Indictment ¶¶ 13, 15-16.
4
References to Defendants’ discovery requests refer to the numbered request on Exhibit A
(hereafter “Def. Req.”).
5
For purposes of Rule 16, the government “possesses” all evidence in the hands of its
investigative and custodial agencies. See United States v. Bryant, 439 F.2d 642, 650 (D.C. Cir.
1971); United States v. Butler, 499 F.2d 1006, 1008 (D.C. Cir. 1974); Robinson v. United States,
825 A.2d 318, 328 (D.C. 2003) (Court of Appeals held that the United States Attorney’s Office
was in possession of a phone call recorded by the D.C. Department of Corrections, and that the
government had an obligation to preserve that statement for trial).

4
 The government must also disclose to the defendant the substance of any other
relevant oral statement made by the defendant whether before or after arrest in
response to interrogation by any person then known by the defendant to be a
government agent if the government intends to use that statement at trial.

“Relevance” as used in Rule 16 is to be broadly interpreted because the government cannot and

arguably will not assess relevance from the Defendants’ perspective:

Rule 16(a)(1)(A) can fully serve its intended purpose only if the Government
takes a broad view of what is relevant for purposes of that provision. We believe
the Government should disclose any statement made by the defendant that may be
relevant to any possible defense or contention that the defendant might assert.
Ordinarily, a statement made by the defendant during the course of the
investigation of the crime charged should be presumed to be subject to disclosure,
unless it is clear that the statement cannot be relevant. Where the Government is
in doubt, the written or recorded statement should be disclosed, if a proper request
is made.

United States v. Bailleaux, 685 F.2d 1105, 1114 (9th Cir. 1982).

For purposes of Rule 16, “statements” is to be broadly construed and has been found to

encompass not just verbatim and contemporaneous statements, see United States v. Elife, 43

F.R.D. 23 (S.D.N.Y. 1967), but also a wide range of other “statements,” including: statements

that reproduce the defendant’s exact words, see United States v. Armantrout, 278 F. Supp. 517

(S.D.N.Y. 1968); summaries of the substance of a defendant’s statement, see United States v.

Scharf, 267 F. Supp. 19 (S.D.N.Y. 1967); written summaries of the defendant’s oral statements,

see United States v. Johnson, 525 F.2d 999 (2d Cir. 1975), United States v. Morrison, 43 F.R.D.

516 (N.D. Ill. 1967); statements discovered by means of electronic surveillance, see United

States v. Black, 282 F. Supp. 35 (D.D.C. 1968); any statement, letter, or other document written

by the defendant, regardless of the time it was made or audience for which it was intended, see,

e.g., United States v. Caldwell, 543 F.2d 1333, 1352 (D.C. Cir. 1974) (finding post-arrest

personal letter to friend, given to government by jailhouse informant discoverable); any

transcribed, tape recorded, or videotaped statement by the defendant, regardless of the time it

5
was made or its intended audience, see, e.g., United States v. Bufalino, 576 F.2d 446, 449 (2d

Cir. 1978), United States v. James, 495 F.2d 434, 435-36 (5th Cir. 1974), United States v.

Sherwood, 527 F. Supp. 1001, 1003 (W.D.N.Y 1981), aff’d without opinion, 732 F.2d 142 (2d

Cir. 1984); and law enforcement officers’ written reports or notes summarizing or otherwise

recording the defendant’s oral statements to law enforcement officers, see, e.g., United States v.

Harris, 543 F.2d 1247, 1252-53 (9th Cir. 1976) (finding original interview notes discoverable

especially when given by the accused), United States v. Johnson, 525 F.2d 999, 1004 (2d Cir.

1975) (holding that written summaries as well as statements copied verbatim are discoverable);

United States v. Lewis, 511 F.2d 798, 802 (D.C. Cir. 1975) (the defendant’s oral statements

communicated to police are discoverable), United States v. Jefferson, 445 F.2d 247, 250 (D.C.

Cir. 1971) (allowing discovery of police officer’s handwritten notes), United States v. Egan, 501

F. Supp. 1252, 1264 (S.D.N.Y. 1980) (holding that any rough notes or copies of such from law

enforcement agents concerning the defendant’s statement(s) are discoverable).

“Substance” as used in Rule 16 is also interpreted broadly. The substance of the

Defendants’ statements must be disclosed even if a statement has not been recorded or reduced

to writing and even if it is intended only to be used in rebuttal. See United States v. Lewis, 511

F.2d 798, 801 (D.C. Cir. 1975). Moreover, the “substance” of a statement can “include what it

does not say as well as what it says”— that is, if the government intends to impeach the

defendant with an omission, the omission is part of the “substance” and must be disclosed. See

Yoon v. United States, 594 A.2d 1056, 1060-61 (D.C. 1991). 6 Moreover, the government must

6
In Yoon, after the government rested its case, the prosecutor disclosed that the appellant had
spoken with the police on the scene of the shooting at issue and had not mentioned the defense’s
contention at trial that the decedent possessed a gun. This statement was discoverable under
Rule 16, even though the prosecutor intended to use it only if the defendant testified, and the
failure to disclose caused substantial prejudice. Id. at 1060, 1064.

6
disclose the substance “accurately and unambiguously” and in sufficient detail to prevent unfair

surprise at trial. See Smith v. United States, 491 A.2d 1144, 1147 (D.C. 1985).

Here, among others things, the government:

• failed to produce all notes of statements made by the Defendants during what
collectively was more than 25 hours of interrogation on August 2 and August 3,
2006;

• failed to produce notes or summaries of statements made to District of Columbia

EMS personnel who responded to the scene;

• failed to produce a handwritten diagram and list made by Mr. Price;

• produced only portions of the videotaped statements of the Defendants. For

example, Mr. Ward was interrogated for more than twelve hours, beginning at
approximately 12:30 a.m. on August 3, 2006, and ending at approximately noon.
However the government has produced only two videotapes of Mr. Ward’s
interrogation. One begins at 5:30 a.m. and ends at approximately 7:00 a.m. The
second begins at sometime after 8:00 a.m. and is only approximately thirty
minutes in duration. Similarly, though Mr. Zaborsky was interrogated for more
than eight hours, all through the night of August 2-3, 2006, the government has
produced two videotapes totaling only approximately two hours and thirty
minutes (2:30:28) of Mr. Zaborsky’s lengthy interrogation. Mr. Price’s
interrogation lasted approximately six hours, yet the videotaped portion produced
by the government begins mid-sentence and is only approximately three hours
and forty minutes long (3:40:81); and

• failed to produce statements made by Ward, including videotapes and completed

intake forms, during a purported polygraph that occurred on August 3, 2006.

These statements, and the others listed on Exhibit A, Def. Req. 1 - 10 are critically

important to the Defendants in preparing for trial, and are undeniably in the control of the

government. In addition, the government has not produced any of the defendants’ statements

that the government intends to use as co-conspirator statements made in the course of the alleged

conspiracy. Pursuant to the express provisions of Rule 16(a)(1)(A), the government should be

required to promptly and fully produce, in non-redacted form, all of the Defendants’ statements.

B. Documents and Tangible Objects

7
 D.C. Super. Ct. Crim. R. 16(a)(1)(C) requires that:

upon request of the defendant the prosecutor shall permit the defendant to inspect
and copy or photograph books, papers, documents, photographs, tangible objects,
buildings or places, or copies or portions thereof, which are within the possession,
custody or control of the government and which are [1] material to the preparation
of the defendant’s defense, [2] or are intended for use by the government as
evidence in chief at the trial or [3] were obtained from or belong to the defendant.

1. Partially Produced/Redacted/Illegible Documents

As a threshold matter, Def. Req. 11 - 17 relate to documents which were either partially

produced, are redacted or are illegible. The Defendants have requested complete, legible non-

redacted copies. The government has failed to make any response to the Defendants’ requests.

2. Items Material to the Preparation of the Defendants’ Defense

Under prong one of Rule 16(a)(1)(C), an item is “material” if it is intended to be used in

the defense case or “if there is a strong indication that it will play an important role in uncovering

admissible evidence, aiding witness preparation, corroborating testimony, or assisting

impeachment and rebuttal.” United States v. Felt, 491 F. Supp. 179, 186 (D.D.C. 1979). To be

“material,” evidence need not be exculpatory or even favorable. As the D.C. Circuit has

explained, “[t]he rule as written does not compel the conclusion that inculpatory evidence is

immune from disclosure. Inculpatory evidence, after all, is just as likely to assist in ‘the

preparation of the defendant’s defense’ as exculpatory evidence.” United States v. Marshall

(Marshall II), 132 F.3d 63, 67 (D.C. Cir. 1998) (rejecting the government’s argument that

“material” refers to only evidence which is “favorable or helpful to a defendant's defense”).

Because it “may be difficult for defendant to make [the materiality] showing if he does not know

what the evidence is,” 7 courts require the defense to make only a prima facie showing of

materiality to obtain discovery. See (Adrian) Wiggins, 386 A.2d 1171, 1178 (D.C. 1978)

7
D.C. Super. Ct. Cr. R. 16(a)(1)(C) advisory committee’s note.
8
(Ferren, J., concurring); see also C. Wright, 2 Federal Practice and Procedure, Criminal 254 at

66-67 (2d ed. 1982).

As discussed below, Def. Req. 18 - 47 are all made pursuant to prong one of Rule

16(a)(1)(C) as they are material to the Defendants’ preparation of their defense. Many of the

items are material for the same reasons and therefore they are grouped for purposes of analysis.

a. Medical Care and Medical History of Robert Wone

Def. Req. 18 - 20, relate to the medical care provided to Mr. Wone on August 2 - 3,

2006, and to his medical history. These items are plainly material to the Defendants’ defense as

they bear directly on the nature of Mr. Wone’s injuries and the government’s claims that Mr.

Wone was chemically incapacitated, sexually assaulted, and stabbed. See Aff. at 12; H’rg Tr.

30:24 – 31:15 (Dec. 19, 2008).

b. Timeline and Robert Wone’s Activities and Communications

Def. Req. 21 - 43 relate to Mr. Wone’s activities and communications in the days leading

up to and on August 2, 2006. Reconstructing Mr. Wone’s activities and communications during

this period is critical to the Defendants’ defense and, among other things, is pivotal in

establishing how Mr. Wone came to be staying at the Defendants’ home, the nature of his

relationship with the Defendants, and the timeline of events leading to, and after, his arrival at

1509 Swann Street.

c. Burglary of 1509 Swann Street

On or about October 31, 2006, 1509 Swann St. (which was uninhabitable at that time due

to extensive damage done to the structure by MPD during its “evidence” collection) was the

subject of a burglary. The Defendant’s brother, Michael Price and Michael Price’s friend, Phelps

Collins, were charged by the United States Attorney’s Office for the burglary, though the case

9
was ultimately dismissed. The MPD detectives in charge of the Wone homicide investigation

questioned Mr. Collins, and AUSA Kirschner questioned both Mr. Ward and Mr. Zaborsky

about the burglary. The government suggested to the Defendants that the burglary may be

connected to Mr. Wone’s death. Accordingly, Def. Req. 44 - 47, relate to evidence and

information obtained by the government regarding the burglary. This information may provide

leads to potential witnesses or information that may allow the Defendants to develop exculpatory

evidence. Consequently, it is material to the Defendants’ preparation of their defense and should

be produced by the government.

3. Items Obtained from or Belonging to the Defendants

The final prong of Rule 16(a)(1)(C) requires the government to produce items “obtained

from or belong[ing] to the defendant.” Def. Req. 48 - 61 were all obtained from or belong to the

Defendants and therefore the government should be compelled to produce the requested items

without further delay.

C. Reports of Examinations and Tests

In each of their initial discovery letters, the Defendants informed the government that

“the crime scene processing and the forensic reports are critical to the defense in this case,” 8 and

that the Defendants have learned that “the search and subsequent extraction of possible blood

and trace evidence may have been compromised during the search at 1509 Swann Street.”

Accordingly, pursuant to Rule 16(a)(1)(D), the Defendants promptly and repeatedly

sought all crime scene reports including the nature of the tests that were conducted at 1509

Swann Street, what tests were attempted and failed, and why those tests failed. See Def. Req. 65.

8
See Letter from Schertler to Kirschner 1 (Dec. 1, 2008). See also Letter from Grimm to
Kirschner 1 (Nov. 21, 2008); Letter from Connolly to Kirschner 1 (Dec. 1, 2008).

10
Rule 16(a)(1)(D) entitles the Defendants to this information, as it expressly permits the defense

to:

inspect and copy or photograph any results or reports 9 of physical or mental

examinations, and of scientific tests or experiments, or copies thereof, which are
within the possession, custody or control of the government, the existence of
which is known, or by the exercise of due diligence may become known, to the
prosecutor, and which are material to the preparation of the defense or are
intended for use by the government as evidence in chief at the trial.

1. Items Seized and Sent to the FBI for Testing

In response to the Defendants’ requests, the government indicated that 280 items were

seized for testing. However, as of the date of this motion, the government:

• failed to provide testing results for item numbers 1-12, 32, 33, 39-46, 70-72, 74,
75, 77, 79-111, 158-159, 164-166, 168, 189-198, 200, 201, 203, 204, 206-211,
214, 215, 217-223, 225-227, 230-231, 236, 239-240, 243-262, 266, 267, 269, 272,
273, 274-278;

• failed to produce related government communications containing instructions

regarding the testing of all items;

• failed to produce all of the FBI Crime Labs testing reports;

• provided only three examination results or reports in connection with the finger
and palm prints collected at 1509 Swann Street;

• failed to identify where, exactly, these prints were found in 1509 Swann Street,
including one print that was located somewhere in the room in which Mr. Wone
was stabbed, and that the government has verbally reported is not a print
belonging to Mr. Wone, Mr. Price, Mr. Ward or Mr. Zaborsky; and

• failed to indicate whether the government did elimination testing for various hairs
recovered from 1509 Swann St., including a hair determined not to be that of Mr.
Wone, Mr. Price, Mr. Ward or Mr. Zaborsky, that was found on top of the sheet
next to were Mr. Wone was found stabbed.

9
While Rule 16(a)(1)(D) applies to final reports, working drafts and rough notes may be
discovered under the Jencks Act. See Waldron v. United States, 370 A.2d 1372, 1373 (D.C.
1977). There is no work-product exception under Rule 16(a)(1)(D).

11
Given the nature of the allegations in this case, the Defendants are absolutely entitled to this

evidence. The results of forensic tests performed on the scene, and on evidence recovered from

the scene, are critically important to the defense. This evidence has been in the possession of the

government for more than two and a half years and should be produced to the defense

immediately.

2. Reports and Examinations Related to the Government’s Claims that

Mr. Wone was “tortured, was incapacitated, was sexually suffocated,
was sexually abused”

Although the Defendants are not charged in the indictment with any crime against Robert

Wone, the government has publicly alleged that the Defendants tortured and sexually assaulted

Mr. Wone. The government repeated these allegations to the press and in statements to this

Court, most recently on December 19, 2008, when AUSA Kirschner stated, in front of a gallery

packed with press and Mr. Wone’s family, that “we have an innocent victim who was over

prolonged period time [sic] – when I say prolonged, an hour perhaps, was tortured, was

incapacitated, was sexually suffocated, was sexually abused, . . . .” and that “there was an

ejaculation that occurred and the Government has now, courtesy of experts, learned a lot more

about electro-ejaculation than frankly this counsel ever knew. And there was, indeed, an

electrocution unit . . . that can produce electric ejaculation of a person who is under anesthetic or

otherwise incapacitated. . . . [I]t requires an electrocution unit and a metal, anal prod which was

also recovered . . . . He [Wone] was then allowed to lie there, dying, and digesting his own

blood for a considerable period of time, according to the experts.” H’rg Tr. 30:24 – 31:15 (Dec.

19, 2008) (emphasis added). 10

10
Attached at Exhibit E.

12
 Upon learning that the government was alleging that Mr. Wone had been sexually

assaulted before his death – and upon receiving the autopsy report which finds that Mr. Wone

suffered no injuries nor had any physical signs consistent with a sexual assault – the Defendants

immediately requested the evidence in the government’s possession that supported this

incendiary claim. The Defendants requested:

• all notes, information, reports, examination results and materials related to the
“sexual assault” examination conducted by Dr. Goslinoski, who performed Mr.
Wone’s autopsy, including but not limited to: the identity of each person in
addition to Dr. Goslinoski who was involved with the “sexual assault” exam of
Mr. Wone and all notes taken during or relating to the exam;

• all documentation, test results and paper work associated with both Sexual
Assault Kit #000418 (identified in Wone’s Autopsy Report at 2) and Item # NE2
labeled “Assault kit paperwork” which the government provided to the FBI;

• the exact location on Mr. Wone where each of the swabs was used to collect a
sample;

• the results of all tests and examinations for DNA, hair, fibers or other analysis
related to the sexual assault examination;

• any and all reports or examinations concerning Mr. Wone’s alleged torture, sexual
abuse, and sexual suffocation;

• any and all reports relating to a “metal anal prod,” or any electro-ejaculation
device, that was purportedly used on Mr. Wone;

• any and all reports relating to testing of sexual aids seized from 1509 Swann
Street, N.W.;

• the item number of the electrical device allegedly inserted in Mr. Wone’s anus,
any trace evidence contained on that electrical device which supports the opinion
that it was inserted in Mr. Wone’s anus, and any related reports;

• all photos taken in connection with the sexual assault examination; and

• access to the swabs used for the sexual assault exam which defense counsel
believes to be Q219 – Q245.

13
 Other than a single report from the FBI Crime Lab dated November 24, 2008, stating the

results of testing on some of the samples collected in the sexual assault exam (and referencing a

host of communications and related reports that have not been produced), 11 the government

produced nothing in response to these legitimate, logical and specific requests and has not

permitted the Defendants and their experts access to the swabs used in the sexual assault

examination, and releated smears. It should be ordered to do so. 12

The potential prejudice to the Defendants caused by the government’s delay could be

substantial. The Defendants must decide, pursuant to the Innocence Protection Act, whether to

undertake independent forensic examination of these numerous items in preparation for trial.

That decision rests – in significant part – on the results of the government’s testing and whether

it intends to seek to prove at trial that Mr. Wone was in fact sexually assaulted.

3. Reports and Examinations Related to the Government’s Failure to

Properly Process the Crime Scene

In the weeks following Robert Wone’s death, the Metropolitan Police Department spent

countless hours – more than 20 days in fact – inside of 1509 Swann Street, N.W., processing the

scene and collecting evidence. In addition to seizing hundreds of items, taking hundreds of

finger and palm prints from the inside and outside of the house, cutting out sections of wall,

sawing out numerous sections of the hardwood floors, and taking drain traps and other parts of

the house, the police used chemicals, including a chemical known as Ashley’s Reagent,

throughout the house.

11
See Def. Req. 73 videotape or other audiovisual recording of canine searches of 1509 Swann
St., N.W.; the training history of the dogs and their handlers’ training histories; performance
histories of the dogs; and certifications.
12
Of course, if no tests were done on any of these items, the government should be required to
disclose that information, as well.
14
 When the Defendants were allowed back inside, they were stunned to find virtually every

room of the house permanently stained with chemicals. The Defendants assume that these

chemicals were used by the police in an attempt to find the presence of blood or other bodily

fluids.

Because of the reckless use of the chemicals, the Defendants asked the government

specifically about its application. The sum total of the government’s response was buried in the

government’s February 9, 2009, letter to defense counsel in which AUSA Kirschner wrote “[i]t

has been determined that the Ashley’s Reagent was used in a manner not intended by the

manufacturer of that product.”

In an effort to understand the meaning of this important, but vague, disclosure, the

Defendants asked the government for:

• all communications, investigations, findings and reports related to AUSA

Kirschner’s statement that ‘It has been determined that the Ashley’s Reagent was
used in a manner not intended by the manufacturer of that product,’ including but
not limited to who made this determination, when it was made and how and to
whom the determination was communicated, as well as what—if any—remedial
actions were taken to preserve or rescue evidence;

• an explanation of precisely how the Ashley’s Reagent was used, what the
manufacturer’s intended use is, and how the use of the Ashley’s Reagent in this
case deviated from the manufacturer’s intended use;

• any and all ramifications of the use of Ashley’s Reagent in this case, including
whether the misuse of Ashley’s Reagent had the potential to corrupt, compromise,
destroy or otherwise alter any evidence; and

• notice of any and all relevant information as to whether, as part of the processing
of the crime scene at 1509 Swann St., and any examination or testing thereafter by
MPD of the FBI, any other testing agent or testing process was misapplied or
misused.

Despite the Defendant’s request for more specific information, the government’s silence has

been deafening.

15
 The importance of this evidence cannot be overstated. The government has been unable

to identify and apprehend Mr. Wone’s killer and instead accuses the Defendants of knowing

more than they have told the police. The government bases its claim, as described in the

Affidavit in support of the arrest warrants, on the absence of evidence to suggest that an intruder

killed Robert Wone. That “absence of evidence” includes no evidence of blood or DNA

belonging to Mr. Wone anywhere in the house, except on the bed adjacent to the decedent’s

body. Indeed, as reported by the government every one of the dozens of items that were

removed from 1509 Swann St. on the basis of being “presumptively positive” for blood

according to preliminary tests, ultimately was determined not to contain any traces of blood, at

all.

The government’s cryptic disclosure that “Ashley’s Reagent was used in a manner not

intended by the manufacturer of that product” may in fact mean that critically important evidence

was compromised or destroyed. The details of this misapplication should be disclosed

immediately.

D. Expert Witnesses

Rule 16(a)(1)(E) entitles the defense to “a written summary of the testimony of any

expert witness that the government intends to use during its case-in-chief at trial.” The summary

provided must describe the witnesses’ opinions, the bases and the reasons for those opinions, and

the witnesses’ qualifications. It is well established that Rule 16(a)(1)(E) “is intended to

minimize surprise that often results from unexpected expert testimony, reduce the need for

continuances, and to provide the opponent with a fair opportunity to test the merit of the expert’s

testimony through focused cross-examination.” Ferguson v. United States, 866 A.2d 54 (D.C.

16
2005) (finding a violation of Rule 16(a)(1)(E) by the government’s vague “written summary” of

the testimony and basis and opinion of the proposed expert testimony).

The Defendants have been asking for more than four months for the government’s expert

disclosures pursuant to Rule 16(a)(1)(E). See Def. Req. 74,75. On March 11, 2009, the

government finally produced a single expert report—the report of the government’s purported

blood spatter expert. Other than this report, the government has provided no expert disclosures.

The government’s delay is perplexing not only in light of the fact that the government has had

more than two and half years to prepare its case, but also given the government’s frequent – and

public – statements to this Court and defense counsel that the government has lined up and

consulted with a variety of expert witnesses. AUSA Kirschner’s aforementioned December 19,

2008, statement to this Court that Mr. Wone “was then allowed to lie there, dying, and digesting

his own blood for a considerable period of time, according to the experts,” is one recent

example. H’rg Tr. 31:12-15 (Dec. 19, 2008) (emphasis added). 13

The government should not be permitted to delay any further and should be required to

promptly and fully produce its expert disclosures pursuant to Rule 16(a)(1)(E).

II. THE GOVERNMENT HAS FAILED TO PRODUCE EVIDENCE OF OTHER UNCHARGED

CONDUCT AND INFORMATION PROPERLY DISCOVERABLE UNDER BRADY.

A. Evidence of Uncharged Conduct

The Defendants have repeatedly asked the government to identify any uncharged

misconduct, and in particular all Drew and Toliver information regarding any alleged prior bad

act or inextricably linked activity, including exact time and place of occurrence, concerning or

relating to any and all alleged torture, sexual abuse, sexual suffocation, or use of any “electro-

13
Attached at Exhibit E to Defendants’ Joint Motion to Compel.

17
ejaculation” device. See Def. Req. 76, 77. The government has produced nothing. On February

26 and 27, 2009, defense counsel met with AUSA Kirschner and verbally repeated the requests.

AUSA Kirschner indicated that he did not have evidence of any uncharged misconduct. Based

on this statement the Defendants understand that the government will not be seeking to introduce

evidence of uncharged misconduct relating to any of the Defendants during the course of the

trial.

AUSA Kirschner did state, however, that the government had evidence of “other sexual

conduct” that he intends to introduce. Defense counsel verbally and in writing requested that the

government produce evidence of this “sexual conduct.” Like so many of the other requests made

by the Defendants, this one has gone unanswered. Evidence of sexual conduct of the

Defendants, like evidence of uncharged misconduct, is both not relevant and likely highly

prejudicial. The Defendants are entitled to know – in advance – what purported evidence of

sexual conduct the government intends to attempt to introduce in sufficient time to allow for the

filing of the appropriate motion in limine. See, e.g., D.C. Code § 22-3022.

B. Brady Requests

Pursuant to the United States Supreme Court’s landmark decision in Brady v. Maryland,

373 U.S. 83 (1963), all the Defendants have made general Brady requests, and a total of twenty-

eight specific Brady requests. See Def. Req. 78-102.

It is well established that Brady and its progeny require the government disclose to the

defense, upon request, any evidence in its possession that is both favorable and material to guilt

or punishment, at a time sufficient for it to be used for trial. The duty arises from the Due

Process Clause of the Fifth Amendment and is separate from and independent of any discovery

18
under the Jencks Act, or the rules of criminal procedure. Failure to disclose such favorable

evidence, regardless of the good or bad faith of the prosecutor, is a violation of Due Process.

The obligation of the prosecutor pursuant to Brady is to disclose any evidence that is both

favorable and material to either guilt or punishment. Evidence is material, and constitutional

error results from its suppression by the government, “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 682 (1985). Material evidence includes both

evidence that is directly exculpatory and impeachment evidence. Id. at 676-77. As the Supreme

Court has repeatedly recognized, “materiality” remains “an inevitably imprecise standard.”

United States v. Agurs, 427 U.S. 97, 108 (1976). Consequently, “and because the significance

of an item of evidence can seldom be predicted accurately until the entire record is complete, the

prudent prosecutor will resolve doubtful questions in favor of disclosure.” Id. Prosecutors are

not allowed to withhold potentially exculpatory information simply because they personally do

not believe the evidence to be creditable. Otherwise, "prosecutors might, on a claim that they

thought it unreliable, refuse to produce any matter whatever helpful to the defense, thus setting

Brady at nought.” Bell v. Haley, No. Civ.A.2:95CV913-T, 2005 WL 1242359, *31 (M.D.Ala.

May 25, 2005).

It is also well established that Brady requires production of not only any exculpatory,

material evidence personally known by the prosecutor, or in his or her personal possession, but

also evidence held by other agencies acting on behalf of the government, such as law

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enforcement agencies. See Farley v. United States, 694 A.2d 887, 890 (D.C. 1997) (“the

government is responsible for knowing what the police know”). 14

As previously noted, the government has had more than two and a half years to prepare

its case. It received the Defendants’ Brady requests over four months ago, yet, to date the

government has failed to respond – at all – to any of the Defendants’ Brady requests.

It is critical to the Defendants’ preparation of their case that the government be required

to promptly and fully produce any Brady material in its, MPD’s or the FBI’s possession,

including but not limited to all of the material sought in the Defendants’ specific Brady requests.

See Def. Req. 79 – 102. Indeed, the “prosecution must disclose exculpatory material ‘at such

time as to allow the defense to use the favorable material effectively in the preparation and

presentation of its case.’” Edelen v. United States, 627 A.2d 968, 970 (D.C. 1993) (quoting

United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir 1976)). Information that would require

more than a cursory investigation must be disclosed prior to trial and here, where many of the

Defendants’ discovery requests relate to forensic testing and processing that will require review

and examination by the Defendants’ own forensic experts, time is of the essence.

Since the Court’s decision in Brady, courts interpreting and enforcing Brady¸ as well as

the legal profession’s regulatory authorities and bodies, have all universally expressed the

propriety of and need for early disclosure of Brady material. In Ebron v. United States, the Court
14
See also Kyles v. Whitley, 514 U.S. 419 (1995) (prosecutor’s claim that much of the
undisclosed exculpatory evidence was not disclosed to him by the police is irrelevant; the
knowledge of the police is imputed to the prosecution); Giglio v. United States, 405 U.S. 150
(1972) (witness denied promise of lenience by another prosecutor, of which examining
prosecutor did not know; promise was within government’s knowledge, so non-disclosure
required reversal); Lewis v. United States, 393 A.2d 109 (D.C. 1978) (if criminal record of the
government’s witness was readily accessible to the prosecution, prosecutor’s personal ignorance
of that record is irrelevant: government is deemed to know all prior convictions that are listed in
government records accessible to the prosecution. Government is deemed to have knowledge of
information in files of MPD and FBI.)

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of Appeals articulated this principle, holding that “prosecutors are expected to resolve all

reasonable uncertainty about the potential materiality of exculpatory evidence in favor of prompt

disclosure . . . When the government fails to make prompt disclosure, as required, the

opportunity for use of the material by the defense may be impaired, and the administration of

justice may be impeded by the necessity for a continuance to allow the defense to make use of

the material or by the need for reversal of a conviction.” 838 A.2d 1140, 1156 n.13 (D.C. 2003)

(internal quotations and citations omitted). Similarly, in its more recent decision in Sykes v.

United States, 897 A.2d 769 (D.C. 2006), the Court reversed the defendant’s murder convictions

based on the Government’s untimely disclosure of exculpatory information. “The government’s

very tardy disclosure of Mr. Parrott’s and Mr. Sellers’ grand jury appearance, approximately one

year after that testimony, not only constituted a Brady violation, but also deprived the defense,

pre-trial, of information that was potentially exculpatory, and favorable at least because of its

potential negative impact on the testimony of a key government witness, Mr. Williams.” Id. at

780. In so holding, the Court noted: “Moreover, ‘a prosecutor’s timely disclosure obligation

with respect to Brady material can never be overemphasized,” and the practice of delayed

production must be disapproved and discouraged.” Id. at 777 (quoting Curry v. United States,

658 A.2d 193, 197 (D.C. 1995). See also ABA Standards for Criminal Justice, 11-2.1(c), 11-2.2

(a) (2d. ed. 1980) (disclosure “as soon as practicable following the filing of charges”); 3-3.11(a)

(“disclosure at the earliest feasible opportunity”); D.C. Rules of Professional Conduct, Rule 3.8.

Special Responsibilities of a Prosecutor (2000).

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 CONCLUSION

For these reasons, the Defendants respectfully request that this Court compel the

government to respond promptly and fully to the Defendants’ discovery requests as set forth in

Exhibit A. A proposed order is included for the Court’s consideration.

Respectfully Submitted,

___________________________
David Schertler (DC Bar # 367203)
Robert Spagnoletti (DC Bar # 446462)
SCHERTLER & ONORATO LLP
601 Pennsylvania Ave., N.W.
North Building, 9th Floor
Washington, D.C. 20004
Telephone: 202-628-4199
Facsimile: 202-628-4177
Email: dschertler@schertlerlaw.com
Counsel for Defendant Dylan M. Ward

Thomas G. Connolly, Esq. (DC Bar # 420416)

HARRIS WILTSHIRE & GRANNIS, LLP
1200 18th St., N.W., 12th Floor
Washington, D.C. 20036
Telephone: 202-730-1339
Facsimile: 202-730-1301
Email: tconnolly@harriswiltshire.com
Counsel for Defendant Victor J. Zaborsky

Bernard S. Grimm (DC Bar # 378171)

COZEN O’CONNOR
1627 I Street, N.W., Suite 1100
Washington, D.C. 20006-4007
Telephone: 202-912-4835
Facsimile: 877-260-9435
Email: bgrimm@cozen.com
Counsel for Defendant Joseph R. Price

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